Beasley v. State
| Decision Date | 08 May 1992 |
| Docket Number | No. A92A0165,A92A0165 |
| Citation | 419 S.E.2d 92,204 Ga.App. 214 |
| Parties | BEASLEY v. The STATE. |
| Court | Georgia Court of Appeals |
Langley & Lee, Donald W. Lee, Albany, for appellant.
Britt R. Priddy, Dist. Atty., for appellee.
Willie Dee Beasley was indicted on charges of possession of cocaine with intent to distribute, possession of cocaine, and possession of less than one ounce of marijuana. The jury convicted Beasley of the cocaine and marijuana possession charges but was unable to agree on a verdict on the charge of possession of cocaine with intent to distribute. After the juries in two subsequent trials also failed to agree on a verdict on that charge, Beasley was discharged and acquitted on that count. He appeals from the conviction on the two possession charges.
1. The first issue in this appeal involves appellant's conviction on the possession of cocaine charge. Evidence was adduced at trial that early on the morning of February 26, 1991, Officer Chris Miller was patrolling in Albany in a marked police vehicle when he noticed appellant standing on a corner with several other men and holding a plastic bag. Miller testified the other men quickly dispersed as the police car approached and that he saw appellant drop the plastic bag and walk away. Miller retrieved the bag and because it contained a green leafy material Miller suspected was marijuana, he called to appellant to return. Appellant, who was ten feet from the officer and walking towards a cab stand, complied, provided the officer with identification as requested, and was arrested on a charge of possessing what expert testimony at trial established to be just under a third of an ounce of marijuana. Miller testified he later discovered inside the marijuana five items which were identified at trial as 1.7 grams (1/28th of an ounce) of crack cocaine. Appellant was then charged with possession of cocaine with intent to distribute.
The charge of possession of cocaine was based on events that occurred the day after appellant's arrest while he was still incarcerated. Testimony was adduced that it was the written policy of the Dougherty County Superior Court to request all persons charged with an offense itemized in OCGA § 17-6-1(a) to submit to testing of the individual's urine to detect the presence of illegal drugs, as part of the superior court's consideration of the arrestee's application for bond, and that Dougherty County maintained a laboratory with a toxicological analyzer used to test urine for the presence of certain illegal substances. Because appellant was charged with possession of cocaine with intent to distribute, see OCGA § 17-6-1(a)(8), his name was printed on a list of arrestees from whom urine samples were to be requested. Lieutenant Jimmy Sexton of the Dougherty County Police Department testified that as the supervisor of the lab, he followed normal procedure on February 27, 1991, the day after appellant's arrest, and asked appellant and the other inmates on the list to submit to the testing of their urine. Although the evidence was strongly conflicting, the finder of fact was authorized to believe Sexton's testimony that he informed appellant prior to obtaining appellant's consent and collecting the urine that the purpose of the test was for determining bond and that the amount of bond would be set higher if a person refused to take the test or if the person failed the test (i.e., if illegal substances were discovered in the urine). It is uncontroverted that appellant was not informed by Sexton or anyone that the test results would be used for any purpose other than as a consideration for setting bond. Appellant, who was not represented by counsel at the time or informed of his constitutional rights, consented to provide Sexton with a sample of his urine, which, when tested, proved positive for cocaine. Appellant's bail was set higher as a consequence of the local test results on his urine sample, and based on state crime lab tests subsequently conducted on the same urine sample, appellant was then charged with possession of cocaine. Upon entry of judgment on the guilty verdict on that charge, appellant was sentenced to 15 years, 10 to serve.
The trial court denied appellant's motion to suppress, his objections at trial, and his motion for directed verdict all made on the basis that appellant's constitutional rights had been violated by the manner in which the State obtained the evidence to support the possession of cocaine charge. We agree with appellant that the trial court's rulings were wrong, and we reverse his conviction for possession of cocaine.
Pretermitting the grave questions raised regarding the authority of the Dougherty County Superior Court to condition the amount of bond on an arrestee's "consent" to submit to what our courts have held to be a search and seizure, see City of East Point v. Smith, 258 Ga. 111, 112(1) n. 2, 365 S.E.2d 432 (1988), we find that the evidence regarding the urine sample should have been suppressed because it was obtained in violation of appellant's Fourth Amendment rights. " Allen v. State, 200 Ga.App. 326, 327(1), 408 S.E.2d 127 (1991). A consent to search must be the product of an essentially free and unrestrained choice by its maker. Allen v. State, 191 Ga.App. 623, 624(1), 382 S.E.2d 690 (1989).
Under the totality of the circumstances presented in this case, see generally Bruce v. State, 191 Ga.App. 580, 581(2), 382 S.E.2d 367 (1989), we agree with appellant that the consent he gave Sexton was not voluntary. His consent was premised on the incomplete and thus deceptively misleading information he received from Sexton that the test results would be used only "for determining bond." Had appellant been cautioned that the results of the search and seizure of his urine would be used to supply evidence against him in an independent criminal prosecution, no consent might have been given. Compare United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820, 828-29, 46 L.Ed.2d 598 (1976). Because appellant was not apprised that he was consenting to...
To continue reading
Request your trial
-
Daniel v. State
...assertion of authority. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Beasley v. State, 204 Ga.App. 214, 216(1), 419 S.E.2d 92 (1992). The subjective intent of the officer in requesting the search is relevant to a determination of the consent's volu......
-
Pace v. State
...State v. Jewell, 228 Ga.App. 825, 492 S.E.2d 706 (1997); State v. Gerace, 210 Ga.App. 874, 437 S.E.2d 862 (1993); Beasley v. State, 204 Ga.App. 214(1), 419 S.E.2d 92 (1992). After a suppression hearing, the trial court found that Pace's consent was voluntary, and we agree with the trial cou......
-
Jackson v. State
...'freely and voluntarily given' " consent, "the product of an essentially free and unrestrained choice by [her]." Beasley v. State, 204 Ga.App. 214, 216(1), 419 S.E.2d 92 (1992). The choice appellant was given cannot reasonably be understood to have included the choice to allow the blood tes......
-
Johnson v. State, A98A0745.
...this impeachment evidence and its charge to the jury that an impeached witness is unworthy of belief was harmless. Beasley v. State, 204 Ga.App. 214, 218, 419 S.E.2d 92 (1992); see Wilson v. State, 254 Ga. 473, 477, 330 S.E.2d 364 1. Generally, this Court does not cobble together the trial ......